D v Police HC Hamilton CRI 2007-419-99

[2007] NZHC 1423

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2007-419-99

BETWEEN  D

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         11 December 2007

Appearances: F Hogan for the appellant

J O'Sullivan for the respondent

Judgment:      11 December 2007

(ORAL) JUDGMENT OF POTTER J

on appeal against conviction

Solicitors:           Crown Solicitor, P.O. Box 19-173, Hamilton

Copy to:            F Hogan, Dykes Road, Karaka, R.D.1. Papakura, Auckland

D V NEW ZEALAND POLICE HC HAM CRI 2007-419-99 11 December 2007

[1]      The appellant D   was convicted under s 56(2) of the Land Transport Act 1998 following a defended hearing in the District Court at Thames, that  on  7  April  2007  on  Buffalo  Beach  Road,  Whitianga  he  drove  while  the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, in that it was 168 milligrams of alcohol per 100 millilitres of blood.   That is approximately twice the legal limit.   He was fined $950 and disqualified from driving for six  months from 6 August  2007.    Mr  D   appeals against conviction.

[2]      The notice of appeal states that the decision of the District Court Judge was wrong in fact and the law.   But in submissions there emerged a single point of appeal: that there was insufficient evidence to support a finding made by the District Court Judge that there had been compliance with s 72(3) of the Land Transport Act.

[3]      Section 72(3) provides:

If it is not practicable for a blood specimen to be taken from a person by a … medical practitioner or medical officer at a place where the person has been required under this section to permit the taking of a blood specimen, the person must accompany an enforcement officer to any other place where it is likely that a blood specimen can be taken from the person by a … medical practitioner or medical officer if the officer requires the person to do so.

[4]      It is not in dispute that the essential ingredients of the charge under s 56(2)

were established beyond reasonable doubt, namely:

•   the identity of the appellant Mr D  ;

•   he was driving or attempting to drive a motor vehicle;

•   he was driving the vehicle on a road;

•   the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, that having been ascertained from an analysis of a blood specimen taken from him.

[5]      Nor is it in dispute that compliance with the requirements of s 72(3) must be established on the balance of probabilities.  Section 72(3) establishes pre-conditions for the admissibility of the evidential blood sample.   They are definitional issues. The Crown refers to three cases: R v Gallagher [1991] 3 NZLR 163, Police v Anderson [1972] 2 NZLR 233 and R v Livingstone [2001] 1 NZLR 167 for authority that proof is required on the balance of probabilities. Mr Hogan accepts this to be so.

[6]      The evidence relevant to the discrete issue on appeal is summarised in the judgment of Judge Tompkins delivered on 6 August 2007.  Constable Tania Radford gave evidence that she was working on the checkpoint in Buffalo Beach Road at about 6.28 p.m. on 7 April 2007.   She described how after the defendant gave a positive evidential breath test, approximately five minutes into the statutory required ten minute period during which he could elect to request a blood test, he did so.  She said that the local doctor was telephoned for the purpose of drawing a sample of blood from the defendant.  She said the doctor was at his surgery so Mr D   was taken there.  She described that the surgery was located a matter of only two or three minutes from the location where the booze bus was that night – a distance of approximately 500 metres.

[7]      After Constable Radford completed her evidence she was recalled.  She then described how the sergeant in charge of the operation at the booze bus that night had directed her to transport Mr D   to the doctor’s surgery, and that upon arrival there she saw the doctor conversing with another male person who seemed to her to be in the process of leaving the surgery.

[8]      The Judge observed at [15] of his judgment:

… No evidence was given as to the content of any discussions the officer may have had directly with the doctor or any other police officer that night as to whether it was practicable for the doctor to leave the surgery and travel the short distance to where the booze bus was.

[9]      The Judge, however, went on to conclude at [17] of his judgment that:

… there is, in my view, sufficient evidence for a reasonable inference to be drawn that, because the doctor was at the relevant time engaged with some other person (whether on a professional or other basis), the decision was made not to wait at the booze bus until such time as the doctor might become

available but rather to travel the two minutes or so by car, from the booze bus to the doctor’s surgery, for the purpose of taking a blood specimen.

[10]     He concluded that in those circumstances it was not practicable in a timely fashion for the blood specimen to be taken from Mr D   at the booze bus. He noted that Mr D   readily agreed to accompany Constable Radford to the doctor’s surgery.  He held that s 72(3) of the Act had been complied with.

[11]     Mr Hogan submitted that the foundation evidence to support the inference the Judge drew, was absent.  He noted that the sergeant who was apparently in charge of the operation was in Court that day and could have given evidence.  He submitted there was no evidence led as to why it was not practicable for the doctor to attend and that the Judge made an assumption that the Police acted in accordance with s

72(3).   He referred to the Judge’s observation in his judgment, that “oddly” Mr Hogan had not taken the opportunity to cross-examine Constable Radford on the issue and submitted that the reasoning process of the Judge was bolstered by the absence of cross-examination.

[12]     Ms O’Sullivan submitted there was sufficient evidential foundation for the Judge to draw the inference he did.  The Crown further submitted, if that submission was not upheld, there was, in the circumstances of this case, reasonable compliance in terms of s 64(2) of the Land Transport Act.

[13]     I was at some pains during the course of oral submissions to differentiate with Mr Hogan the question of whether he could or should have cross-examined Constable Radford about this issue, from the evidence that was available and undisputed upon which the Judge was entitled to rely for the inference he made.  It seems to me,  that  while  the  Judge  had  a  clear  view  about  the  requirement  for significant matters that are relevant and in issue to be put to a witness under s 92(1) of the Evidence Act and facilitated the opportunity for that to be done by granting the prosecution leave to recall Constable Radford, when he came at [17] of his judgment to draw inferences and reach conclusions, he did so on the basis of the evidence before him.  He concluded there was sufficient evidence based on the facts that  the  doctor  was  telephoned  by  the  sergeant,  that  Constable  Radford  at  the direction of the sergeant took Mr D   to the surgery, that when she reached

the surgery the doctor was talking with another person who at that time was apparently leaving the surgery, to reasonably infer that it was not  at  that  time, practicable for the blood specimen to be taken at the booze bus.

[14]     I accept the submission of Mr Hogan that this Court is in the same position as the Judge to assess the evidence and to determine whether the inference drawn was one that was reasonably available.  The evidence was perhaps skeletal but I do not find  the  Judge  was  wrong  to  draw  the  inference  he  did  on  the  balance  of probabilities.

[15]     On that basis the appeal is dismissed.  It is unnecessary for me to consider the submissions as to reasonable compliance advanced by the Crown.

[16]     Mr Hogan requested that this Court order that the disqualification imposed by Judge Tompkins on 6 August 2007, which has been deferred pending the outcome of the appeal, should not take effect until midnight on Wednesday 12 December 2007 to enable Mr Hogan to advise Mr D   of the result of the appeal and for Mr D   to make appropriate arrangements.   The Crown not opposing, that application is granted.